Characteristics of Professions

-Body of knowledge conveyed through a formal educational program
-Code of conduct based on widely accepted professional values and taught as part of formal education
-Governing body overseeing compliance to code
-Licensing process with a comprehensive exam
-Clinical training
-Ongoing continuing education

NATIONAL ADVERTISING REVIEW COUNCIL'S MISSION

-Minimizing governmental involvement in advertising
-Maintaining a level playing field for settling disputes among competitive advertisers
-Fostering brand loyalty by increasing public trust in the credibility of advertising

NARB Sanctions

Self-regulation benefits

-Faster, cheaper, more efficient than government
-Relieves government of case load
-Often more stringent than law
-Produces guidelines that help interpret law
-Can deal with issues of that law has trouble dealing with (e.g., taste and decency)

US Constitution Copyright Clause

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Plaintiff Must Prove

What counts as creative?

-Copyright protects original "selection, coordination, and arrangement" of elements
-Copy may be "substantially similar" even if non-identical
-Underlying premises: degree of creativity that warrants copyright is described as "extremely low; even a slight amount will suffice"; copy does not need to be exact

Fair Use Factors

-*Purpose and character of use, including whether use is of a commercial nature or is for nonprofit educational purposes
-Nature of copyright work
-Amount and substantiality of the portion used in relation to the copyrighted work as a whole
-*Effect of the use upon the potential market for or value of the copyrighted work

Eveready battery v. Adolph Coors

Supreme Court has determined that parodies are "transformative" in that they "add something new, with further purpose or different character, altering the first with new expression, meaning, or message"

Defenses to copyright infringement

Trademark Law

Has no express Constitutional authorization

Congress' right to enact trademark legislation comes from the Commerce Clause:
"The Congress shall have the Power . . .To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes . . .To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . .

Trademark rights

Lanham Act (1946)

Right to trademark from "use in commerce"

"use in commerce" means the bona fide use of a mark in the ordinary course of trade, and not merely to reserve a right in a mark. . . a mark shall be deemed to be in use in commerce—
(1) it is displayed in any manner on the goods or their containers or the displays . . .or on the tags or labels. . .or on documents associated with the goods
(2) on services when it is used or displayed in the sale or advertising of services.

Trademark Infringement Criteria

1. Plaintiff has a valid and protectable trademark
2. Plaintiff has priority over the defendant
3. Defendant used the trademark in commerce
4. The defendant's usage creates a likelihood of consumer confusion about the product's source, sponsorship, or affiliation.

Protectable trademark doesn't have to be registered, but needs a descriptive secondary meaning; or a higher term (secondary meaning, etc. - one of the first three)

Likelihood of confusion test

1. Strength of the plaintiff's mark (e.g., distinctiveness, secondary meaning)
2. Degree of similarity between the two marks
3. Proximity of the products or services
4. Likelihood that prior owner will "bridge the gap" into the newcomer's product or service line
5. Evidence of actual consumer confusion between the marks
6. Whether the defendant adopted the mark in good faith
7. Quality of the defendant's products or services
8.Sophistication of the parties' consumers

Nominative Fair Use

Facilitates comparative advertising

Successful defense requirements:
-Plaintiff product is not readily identifiable without using trademark
-Defendant uses plaintiff's trademark only as reasonably necessary to identify the plaintiff's product.
-Defendant's usage does not imply the plaintiff's sponsorship or endorsement

Perspective of the Deceived

Bok

-Deceit makes them (the deceived) unable to make choices for themselves using the best information.
-Deception gives power to the wrongdoer.
-The deceived have no way to determine which lies are trivial.
-The deceived have no confidence that liars will restrict themselves to trivial lies.
-Lying so often accompanies every other form of wrongdoing.

Perspective of the Liar

Bok

-Liars have confidence in their own ability to distinguish good reasons for lying from bad ones.
-Liars desire "free rider" status.
-Liars see most of their lies as white lies.
-When liars weigh the immediate harm for others against the benefits that the want to achieve, they
-Underestimate harm to themselves
- Underestimate harm to the general level of trust and social cooperation
-Liars rarely calculate the risks of being caught.

Types of Excuses

1. What is seen as a lie is not really a problem (e.g., a joke, an exaggeration, impossible to give objective distinctions between truth and falsehood—puffery).
2. The liar is not blameworthy because he is not responsible (e.g., incompetent, drunk, talking in sleep).
3. Moral reasons to lie—reasons that show that the lie ought to be allowed.

Publicity rights from privacy torts

. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Texas Law

3 Elements:
1. Defendant appropriated plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose
2.Plaintiff can be identified from the publication
3. There was some advantage or benefit to the defendant

Publicity Rights

1. Generally protect the use of people's names, images, voices, or other personality attributes from commercialization without consent
2. Protects celebrities and noncelebrities
3. Includes "look alikes" and "sound alikes"
4. Can include associations
5. Can extend after death

Celebrity Endorsements Must:

Expert Endorsements Must:

Refer to product qualities within the endorser's expertise
Be based on product characteristics that are available to typical consumers
Be based on use of the expert's knowledge
Accurately portray the expert's opinion

Testimonials

Bait & Switch Advertising

Advertising an unusually low price, often on a brand that will draw consumers to the store, combined with personal selling tactics that discourage the purchase of the advertised item and encourage the purchase of a higher priced item.

Moral Myopia

Moral Myopia is nearsightedness. You don't see the ethical issues clearly. There are several levels of myopia: Individual (lying), Organization (do work with tobacco company?), and Society (use ultra-thin models?)